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covering from a severe illness, to defy human nature in this gallant manner, can the same be said of the officers of his court? Are the attorneys who flock to it men of iron frames, or mere beings of ordinary bone and sinews? As to the suitors and witnesses who are compelled to attend the court daring these protracted sittings, all consideration for them is, we suppose, entirely out of the question, when the Judge encounters the "self-immolation," as he terms it, which the passage we have quoted unmistakeably indicates.
Mr. Ramsay is evidently of opinion that he is entitled to sympathy rather than censure for such herculean labours. If an imperative necessity existed for these labours, we could appreciate and applaud the self denial and extraordinary perseverance which dictated them. But where is the necessity? Mr. Ramshay, in disposing of these 1,000 causes, sat, as he tells us, from fifteen to sixteen hours each day, and the state of exhaustion in which this killing work must have left him may be inferred from his own account of it. Now, can Mr. Ramshay deny that the state of the physical frame materially influences the mind, or that if he had extended the sittings to double the number of days, that is, from eleven to twenty-two days, and limited the attendance on those twenty-two days to seven or eight hours each, he would not have gone through his work with more satisfaction to himself, to the bar, to the officers of his court, and to the public? In reply to the assumption that he "desired to quit the town at the earliest possible moment, to return to it at the most distant possible interval," Mr. Ramshay states that he has nothing to engage his attention in London at present, and that he will remain here until after the September sitting. This explanation, it appears to us, reduces his conduct to the very wantonness of caprice. Would he not have been as profitably employed in his court for eleven days following the 5th instant, when he broke it up, as he has been this week in dashing through the streets of Liverpool in a light yellow carriage, with four grays and two postilions in red jackets, to the astonishment of all the ragged urchins whom this astounding display threw into ecstacies? If, in the column and a half of type which Mr. Ramshay's defence occupies, he had shown any necessity or utility for this continuous labour he would have written to some purpose; but, while he has touched upon every imaginable and irrelevant topic, he seems to have studiously avoided the only point in which the public are really interested. The assumption throughout his letter that the late sittings are indulged in to keep faith with the suitors is altogether a fallacy. An advertisement in the local papers, or a printed placard on the walls of his court, showing the progress of the cause list each day, would inform the interested parties how matters stood, and they could regulate their movements accordingly. The working of the present system will be seen in one fact which we shall mention. In the case of Carroll
One statement in the verbose letter of the County Court judge we are bound in justice to notice. He asserts that in no case after six o'clock at night were the names of persons not in attendance at his court struck out of the cause list, and necessarily, that entrance fees for a new trial were not exacted. Our information on this point has misled us. It is the only injustice we have done Mr. Ramshay, and we have done it, we assure him, unconsciously. A retraction of this part of our statement is due to ourselves, as well as to the judge.
We respect the office of a judge and the administration of justice too much to desire to impugn the one or to weaken the other. Well managed, the County Courts cannot fail to become one of the greatest boons which the Legislature has ever bestowed on the country, but good management is essential to their success. To keep them open sixteen hours of the twenty-four during a few days of the month, and to close them entirely on other days, is, in our humble opinion, very foolish as well as very reckless management. No better proof of the fact can be adduced than this-that whereas last month the number of plaints entered were nearly one thousand, this month they have fallen off nearly one half. Does it require a conjuror to divine the cause of this extraordinary declension? Mr. Ramshay will do well to ponder on it.
DINNER IN A COUNTY COURT.-On Saturday, Mr. Ramshay, the judge of the Liverpool County Court, whose judicial conduct was lately the subject of a protracted investigation before the Chancellor of the Duchy of Lancaster, when he was absolved of the charges alleged against him, gave an entertainment to about forty of his friends," in honour of the great principle of judicial independence, so long assailed in that town." The dinner took place in the judge's own hall of justice, which was decorated for the occasion with flags nd evergreens.-Daily News.
ATTORNEYS' GOWNS.-On the establishing County Courts, the question of attorneys being entitled to their ancient privilege of appearing in gowns in court was much agitated amongst some of the profession, and one legal gentleman, who was very zealous for maintaining the honour, organised a movement for promoting the object. At the County Court at Driffield, on Tuesday last, Mr. Collinson, solicitor, appeared for the first time in a gown, and was the first to set the example in this court. In the York court all the attorneys appear in gowns; indeed the learned judge (Serjeant Dowling) will not give them audience unlses they are robed.—
Y. Carlos, numbered 749 in the cause list, the plaintiff and a wit- THE LAWYER'S LIBRARY, in Weekly
ness were in attendance five days before the cause came on. judgment was in favour of the plaintiff, who was awarded five shillings per day for his attendance, and the same for that of his witness. The amount recovered was 67. 12s. 8d., and the costs 51. 11s., of which one-half consisted of the wages allowed for attendance on the court. Such a case never occurred during the time of Mr. Ramshay's predecessor, who kept open his court four days in the week,-an arrangement more than ever demanded by the growing wants of the community, and by the fact that the claimants who come to it are scattered over a circumference of fifty or sixty miles. Indeed, to country suitors, the late sittings are cruel in the extreme. Beyond a certain hour in the evening they cannot return home, and their stay in town all night is necessarily attended with great additional expense and hardship.
Mr. Ramshay, when he descends into the arena of controversy, must be content to fare the same as other combatants, and for this he seems prepared, judging from the tone of his letter in the Courier. The imputation of motives in that letter on persons as intelligent and respectable as himself, is as profuse as "leaves in Valambrosa." A judge who is complaining of being libelled by a misconstruction of his motives, could afford, we should have thought, to be dignified himself. There are imputations of venality and corruption brought against ourselves in the letter to which Mr. Ramshay's name is appended, which would justify us in applying to the Court of Queen's Bench for redress against the writer. Lord Tenterden once held, even before the recent amendment of the law of libel, that "a person who had made use of abusive epithets was not entitled to very heavy damages for the application to himself of similar language." To Mr. Ramshay we have never been abusive, but it answers his purpose to assume throughout that we have been co-operating with the parties who brought him before the Chancellor of the Duchy's Court. We deny the fact and the inference, and all the gentlemen to whom Mr. Ramshay points will indorse our statement. We have pursued a perfectly independent course in this matter, without consulting any one; and, had Mr. Ramshay been the victim of persecution, we would have been the first to have stood forward in his defence. There is such a virtue as independence in newspapers, unconscious as Mr. Ramshay may possibly be of the fact.
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THE NEW FRIENDLY SOCIETIES ACT,
13 & 14 Vict. cap. 115, with Introduction, Notes, and a copious Index. By WILLIAM PATERSON, Esq., Barrister-at-Law, Author of "Joint-Stock Companies Act," &c. Price ls. 6d. sewn; 2s. cloth. London: JOHN CROCKFORD, Law Times Office.
January 16 and 18, and June 30, 1851.
HART V. BAXENDALE.
Carriers-Liability of-Receiving goods at places other than booking-office, &c.-12 Geo. 4 & 1 Will. 4, c. 68. The 12 Geo. 4 & 1 Will. 4, c. 68, does not exempt carriers from responsibility for loss of any of the articles mentioned in the first section of that act, when such articles have been delivered to the carrier's servant in a cart in the street, or elsewhere than at one of the offices, warehouses, or receiving-houses in which the notice required by the second section is affixed. Per Parke, Alderson, Platt, and Martin, BB. Pollock, C.B., dissentiente. This was an action against a carrier to recover the value of certain fancy dresses, silk tights, Highland costumes, &c. which had been entrusted to him to carry, and which had been lost. At the trial before Pollock, C. B. a verdict was returned for the defendant, with leave for the plaintiff to move to enter the verdict for him for damages in respect of all the property lost if the court should be of opinion that the circumstances of the case did not come within the Carriers' Act.
It appeared that the defendant had sent for the goods, and had taken them away from the plaintiff's shop, so that no notice could have been put up as required by the second section of the act.
On the argument of the rule,
M. Chambers, Bramwell, and C. Pollock, in support. PARKE, B. now delivered the judgment of the court. -In this case we are of opinion that the rule which has been obtained to enter a verdict for the plaintiff for damages in respect of all the property lost should be made absolute, on the ground that the statute, the 12th of Geo. 4, and the 1st Will. 4, c. 68, does not exempt carriers from responsibility for loss of trinkets, silks, &c. delivered to them for carriage at any other place than one of their offices, warehouses, or receiving warehouses, where a notice is affixed; and the goods in question in this case, having been delivered to one of the defendant's servants in a cart at the plaintiff's own house, without any special contract, the defendant is responsible as a common carrier, at Common Law. It is, therefore, unnecessary to consider whether the whole or part of these articles were such as the defendant could not have been responsible for if they had been delivered at the defendant's receiving house; the question depends upon the construction of the statute, which is not very accurately penned, and which cannot be made consistent throughout, if read according to its ordinary and grammatical sense; the language must, therefore, be modified in some respects, to carry into effect the intention of the Legislature to be collected from the whole act. It is clear that the object of the Legislature was to relieve such coach proprietors and carriers as should publish notices of restricted responsibility and those only (for this is expressly enacted by the third section) from liability for loss or damage to the enumerated goods which are articles of value in a small compass; they are protected as to these articles by such a notice; and as to goods as to which they are not entitled to the benefit of the act, they cannot restrict their liability by any general notice; that is, under sect. 4, although they are at liberty by sect. 6 to make special contracts. It being essential then to the obtaining the protection of the act that the notice should be given, it seems clearly to follow it is effective only as to those who receive the notice
actually or constructively. The statute, then, having in the recital stated the difficulty of proving actual notice, enacts, in sect, 21, to what persons the notice shall be restricted those are, by that section, the persons who send goods or deliver them at the office where the notice is affixed, who are expressly declared to be bound by it without further proof. But those who deliver, not at the office, but elsewhere, are, in no part of the act, declared to be bound by the notice; and it never could have been intended to exempt carriers from liability to persons who delivered their goods to them without receiving any notice to limit the responsibility, actual or constructive. This intention of the Legislature appears, we think, from what we have stated already, and reading all the clauses of the act together, there will be nothing which is not easy reconcileable with that construction, and the whole may be made consistent. The first section, after reciting the difficulty of fixing parties with the knowledge, provides that, for the enumerated articles carriers shall not be liable, whether they were delivered to be carried for hire, or to accompany a passenger, unless at the time of delivery at the office of the carrier, or to the bookkeeper, coachman, or other servant, for the purpose of being carried, or accompanying the person of any passenger, the value and nature of the article shall have been declared by the person sending or delivering the same, and the increased charge thereinafter mentioned, or an engagement to pay it accepted by the persons receiving such package. The increased charge to be received is provided for by the 2nd section, and it is further enacted, that it shall be ratified by some notice affixed at the office where such packages are delivered; and no case, therefore, can fall within that first section unless there has been notice affixed at some office, for in no other way can the increased charge be ascertained. Then follows the provision that the notice affixed shall be the constructive notice to all who deliver their goods at their office, and afterwards the 5th section occurs, which enables persons who deliver at any such office, and pay the increased charge or premium, to recover it from the carrier in case of loss. There is no provision that any person delivering the goods at any other place shall be entitled to recover their value, which shows pretty clearly the Legislature contemplated no other person than those who delivered at the office to be entitled to the benefit of the act; for if it had, it would have provided every one paying the premium should, in the event of loss, recover it back again. The only difficulty in the way of making all these provisions consistent, arises from the introduction of the words in the first section, which speaks not only of delivery at the office, but "to the book-keeper, coachman, or other servant of the carrier." It is contended for the defen
dant that by these words the defendant has a right to the protection of the act, although the goods are not delivered at the office, but to his servants elsewhere. On the other hand, the plaintiff contends that the meaning of these words is merely that the protection given by the statute shall apply to all goods which are delivered at the receiving-house, or if it happen to be closed, to the bookkeeper or a servant there, or to the coachman when the passenger brings his luggage with him, and delivers it to the coachman. We think there are much greater difficulties in the way of the defendant's than the plaintiff's proposed construction; if the words are construed as the plaintiff proposes, by what notice is the increased rates of charge to be paid to the servant to be ascertained? A notice at the nearest receiving-house, or, at what other, and how? If the notice should happen to differ, and if there should be notice at one receiving-house and not at another, what provision is there that such notice should fix the person so delivering the goods to the defendant's servant? How is such a person to recover the premiums as part of the damages
in the event of loss? These are serious objections to the plaintiff's construction of these words. On the other hand, to obviate this, would require great alteration in the act; a provision that a notice at the nearest receivinghouse, or at all the receiving-houses in the town, should be constructive notice; a provision that the premium should be recovered whenever the goods are delivered. The defendant's explanation, on the other hand, requires a very slight alteration of the words of the act, and makes the whole statute consistent and reasonable. A person so delivering will have to pay the premium indicated in the notice at the office, and will be considered as delivering parcels at the office, and having the constructive notice under the second section. Upon this, which, after much consideration, we think the true construction, there will be no hardship on the carrier. It is his duty to receive goods in the street in the cart, which, as a common carrier, he is bound to do, unless he makes a public profession to the contrary. He can only protect himself by special contract with each person bringing goods to him, but this he would have no difficulty in doing. It will be a question with him whether it will be more convenient, on the whole, to abstain from receiving goods elsewhere than at the receiving-house, or to take the trouble of delivering a special notice to each person bringing a parcel to his servant elsewhere, and so creating a special contract with them. Some verbal criticisms were made by Mr. Peacock on the second section, which he contends were in favour of the defendant. The beginning of that section speaks of every parcel containing valuable articles being brought in the singular number; a notice must be fixed in the office where such parcels were received; he argued, therefore, that the word such parcels may mean a smaller parcel, or such description of parcel, it could not be meant any office where a package containing such valuable articles may not have been received, for the office receives all sorts of parcels. If that is the meaning, what is the office where there are several at which notice is put up? for it is at one office only the notice is required to be put up to give the protection of the act. It is much more reasonable to say the word “such" means the parcels so delivered, as before mentioned, at the particular office where the notice is put up, so that the notice at each office will operate with respect to parcels delivered at each office, although there is a trifling verbal inaccuracy in using the plural number. On the whole, we are of opinion the defendant, by receiving the goods in the cart in the street, has placed himself in the situation of a carrier at common law, who has given no notice, and is, therefore, liable to pay for the loss of the goods, although they may be articles of the description mentioned in the statute, such as he would not have been liable for if delivered at the office where the notice was fixed. This is the opinion of the other members of the court, not including the Lord Chief Baron, who retains the opinion that he expressed at Nisi Prius; and it is thought, under these circumstances, that if the defendant wishes to contest the propriety of the opinion of the majority of the court, he shall be at liberty to consider the opinion of the majority of the court. as delivered by my Lord Chief Baron, at Nisi Prius, in the shape of a bill of exceptions, on paying the costs of the argument for the new trial. Therefore the defendant may elect within any time that is thought proper, after considering this case, to put it upon the record in that shape. Rule absolute accordingly.
July 16, 1851.
SHARP V. EVERLEIGH.
Costs.-A judge at chambers has jurisdiction under the
13th section of 13 & 14 Vict. c. 61, to order costs, notwithstanding an order of reference, whereby the arbitrators had the same powers to certify as a judge.
This was an action of covenant, which came for trial at the last Spring Assizes for Sussex, at Lewes, when the case was referred under the usual order. There were two issues raised, on one of which the defendant had paid 207. into court, and on that issue had a verdict. The plaintiff had a verdict on the second issue, but for less than 20%. The plaintiff having obtained an order for his costs, under the 13th section of 13 & 14 Vict. c. 61, the defendant now applied to set that order aside, on the ground that the same was made without jurisdiction, the arbitrator having been invested with the power to certify; and he not having certified, the judge had no power to make an order for costs.
PARKE, B., said he considered the plaintiff entitled to the costs, and that he had clearly jurisdiction to make the order. Therefore the present summons must be dismissed with costs.
Hawkins, counsel, for the plaintiff.
Attorney for the plaintiff, Gibson.
Attorneys for the defendant, Wilton and Blackman.
A. was a baker, B. his wife, who lived with him, let apartments, and received the money. Having saved money by so doing, she, without A.'s knowledge, bought shares in a building society; she afterwards sold out the shares and gave the proceeds to C.:
Held, that A. might recover such proceeds from C. in an action for money had and received.
The action was in assumpsit for 360%. money had and received to the plaintiff's use, and on an account stated It appeared from the evidence that the plaintiff married the mother of the defendant; that the plaintiff carried on the business of a biscuit baker; that his wife, who lived in the same house with him, took lodgers and boarders, received the profits, and thereby accumulated a large sum of money; that she, without her husband's knowledge, invested this sum in subscribing to a building society; that some years afterwards she sold out her shares in the society for 360l. and that she gave this sum to the defendant. Upon this coming to the knowledge of the plaintiff, he applied to the defendant for the money; it was refused, and consequently the present action was brought.
Humfrey, Q.C. for the defendant.-That as the money was the produce of the wife's separate business, it must be treated as her separate estate, and that she had properly a power of disposal over it.
WIGHTMAN, J.-I have no doubt whatever that the money belonged to the plaintiff; the wife lived with him, and merely assisted him in his business; while he attended to one branch, she attended to another branch of it; she had no right to dispose of the money so acquired, and could confer no title on the defendant. The plaintiff is entitled to recover.
Verdict for the plaintiff. Knowles, Q.C. and Addison, for the plaintiff. Humfrey, Q.C. for the defendant.
that offence for a definite time. This officer might not be able for years to pay a sum of 491. It was no pre
Reported by DAVID CATO MACRAE, Esq., of the Middle Temple, ference, as it was spent upon himself and children.
(Before the CHIEF COMMISSIONER.)
Re THOMAS Down.
County Court order—Conditional discharge.
A. an insolvent debtor receives his current pay as a warrant officer between the date of his vesting order and his discharge under the 1 & 2 Vict. c. 110, and spends the whole in the support of himself and his children: Held (per Gale, Esq., judge of the County Court), that A. was not entitled to his discharge until the whole sum so expended was paid to the official assignee for the creditors.
Held, that the court cannot alter or amend the adjudication of the judge of the County Court.
Sturgeon (at the rising of the court) begged permission to call the attention of the court to the case of Thomas Down, an insolvent debtor, who was recently heard before Mr. Gale, the judge of the Hampshire County Court, with a view to ascertain whether the court could further the liberation of the insolvent, who was likely to be detained in prison a very long time, perhaps years, in consequence of what might be considered an injudicious and hasty order of the judge. The insolvent was a boatswain and master rigger in the navy, and he had received a sum of 421. being his current pay from the Board of Admiralty, after the date of his vesting order, and had expended it in the necessary support of himself and family. The judge of the County Court held that as all his property before his discharge vested in the provisional assignee, he had no right to expend the money, and pronounced an adjudication of discharge conditional upon his repaying the entire sum to the provisional assignee. This man had no means whatever of paying that sum, and might in consequence have to remain in prison for years. He feared there was no appeal, and if so that was the fault of the Legislature, which was more apt to multiply acts of Parliament than to provide the means of superintending the machinery which was to carry them into operation.
The CHIEF COMMISSIONER made an observation (not distinctly heard) respecting the full pay of an officer. Nichols (amicus curia) said, that there were cases in the books to show that the full pay of an officer could not be assigned.
Sturgeon. This was the full pay of an officer received between the vesting order and the discharge. There was no fraud, no concealment, and it appeared to him a mistake in the mind of the judge. He had remonstrated at the time, but Mr. Gale said you can apply to the court above.
The CHIEF COMMISSIONER read sect. 56:-"Nothing in this act contained shall extend to entitle the assignee or assignees of the estate and effects of any such prisoner, being, or having been, an officer of the army or navy, or an officer, or clerk, or otherwise employed or engaged in the service of Her Majesty, in the customs, or excise or any civil office, or other department whatsoever, &c. to the pay, half-pay, salary, emoluments, or pension, of any such prisoner for the purposes of this act.'
Sturgeon.-There were no reasons given for this order. They could not appeal to this court, nor had they, as it appeared to him, any other mode of relief. If applied for a habeas, the return would be an apparent order within the limits of the jurisdiction.
The CHIEF COMMISSIONER.-It is not a making away with property, because it was property coming after the vesting order.
Sturgeon.-Supposing it was property improperly made away with, the judge was bound to remand for
The CHIEF COMMISSIONER observed,-I do not see how I can help you.(a)
(a) The hardship upon the insolvent and the possible length of imprisonment to which he may be subjected in consequence of this order made by Mr. Gale, will justify one or two remarks. In the first place, the pay or half-pay of an officer is not assignable and does not pass to his assignees; there are numbers of cases in the books upon that point; secondly, there is an express enactment in the act (s. 56) that the assignees shall not be entitled to the pay or half-pay or pension of an officer "for the purposes of the Act;" and, thirdly, if it did pass to his assignees, he is entitled to an "allowance for his support and maintenance during his imprisonment (s. 43), and this independently of the 201. worth of property which the act otherwise entitles him to exempt from its operation; and again, if his pay did pass under his vesting order, that portion of it which was for work and labour performed in his professional duties and necessary for his maintenance would not pass. For all these reasons it appears (taking the facts stated to be true), that the assertion of counsel that the order made by the learned judge was "hasty" is not without foundation, and it is the more necessary to say this as the insolvent may be kept in prison for an "indefinite period," and the statute provides no mode of appeal from the order in insolvency made by the learned judge at the hearing. The policy of the statute is against reducing a man to absolute pauperism, and the policy of the law generally is against depriving a man in the service of his country of the means of discharging his duties to the state. How very tender the Insolvent Debtors' Court is in dealing with these and similar cases, may be seen from the case of Re Dax, an outline of whose case is appended to this note. It appeared that he was in the receipt of a pension as compensation for an abolished office, but he happened to be a public officer in the the court, after much consideration, and a very full argument, to Court of Exchequer and that, with other circumstances, induced doubt the propriety of enforcing the payment of a portion of this for default in his payments was discharged. pension to his assignees, and the rule for an attachment against him The learned judge
may vary, alter, or amend" his order. The court in London pronounces at times a conditional discharge upon the payment of money into court. When it is proved subsequently to be out of the insolvent's power to obey the order the court has altered the adjudication. The Chief Commissioner did this not long since in the case of an Oxford student. If the insolvent is still shut up in prison and separated from his wife and family, probably the learned
judge of the County Court may, upon consideration, think it right to
follow the practice of the Insolvent Debtors' Court, and "amend his order of adjudication."-REPORTER.
July 27, 1842. Re THOMAS DAX.
Setting aside the pay or pension of officers or clerks employed in the public service of the state.
The court has no power over the pay) pension of any officer or clerk employed in the service of Her Majesty in any civil office or other department whatever. (1 & 2 Vict. c. 110, s. 56.) D. an insolvent debtor receiving a pension as compensation for the abolished office of clerk of the pleas in the Court of Exchequer entered into a consent rule upon his discharge to pay 7001. per annum into court for the benefit of his creditors: Held, upon default of payment of the instalments pursuant to the terms of the rule of court, that the court could not enforce the rule.
This insolvent was Taxing Master of the Court of Exchequer and was discharged by the court on the 18th of August, 1840 (No. 49,897), he consenting to set apart a sum of 7004. per annum out of a pension which he received as compensation for the office of clerk of the pleas in the Court of Exchequer which was abolished. On the 15th September, 1841, the consent to pay this sum was made a rule of court upon the application of counsel. Default
having been made in the payment of the instalments,
To-day (July 27, 1842) the following rule nisi for an attachof the estate of the said insolvent debtor; and on reading the ment was obtained, upon the application of William Dixon, assignee affidavits of William Dixon and Thomas Whalley, it is ordered that the said insolvent debtor shall, on the 4th August next, show cause
why an attachment should not issue against him for contempt in not paying over to his assignee, William Dixon, the sun of 3507.
August 18, 1851.
(Before Mr. Commissioner Law.)
Re JAMES ELLIS.
Bail-Opposition-Privileges of Attorneys.
The rule or instruction by the court respecting oppositions by attorneys, upon application of insolvents to be admitted to bail till their hearing, under 1 & 2 Vict. c. 110, is thus indorsed upon the " Original notice of sureties:" -"Any creditor, by himself, by counsel, or by his attorney or attorney's agent may there object to the proposed sureties, or otherwise object to such application." This insolvent, lessee or proprietor of Cremorne Gardens, applied to be admitted to bail till the day appointed for his hearing.
Bursell, an attorney, appeared to oppose for Mr. Thos. Foulkes, detaining creditor.
Cooke, for the insolvent, objected that Mr. Bursell was not the attorney named on the record, or his agent, and therefore he was not entitled to oppose.
Bursell said, in reply to the learned Commissioner, he certainly was not Mr. Foulkes' attorney in the action, nor the attorney's agent; but he had lately been employed by him in professional business as his attorney; and meeting him that morning, he had instructed him to oppose on his behalf.
Mr. Commissioner LAW observed, that he was not aware whether this point had ever been discussed. The matter should be considered upon principle.
Cooke referred to the invariable practice of the court, and continued—It was not competent for a man to meet any attorney in the street and say go and oppose for me. There would be nothing to show that an attorney so situated was properly instructed, and it might lead to great abuse. He should, at all events, come there fortified with something in writing to show that he was authorized to appear. There had been no order of the court to change attorneys in the action upon which insolvent was detained in custody.
Bursell contended that when a judgment was recovered there was no necessity for a change of attorneys by rule of court. The rule of court recognised agents. He could appear in the same way as Mr. Foulkes.
Cooke said there was a case many years ago before the the Chief Commissioner. Mr. Lewis was agent of a country attorney, and as such he appeared to oppose the bail. His privilege to oppose was questioned, as the attorney for whom he appeared as agent had an agent in London in Common Law matters. The Chief Commissioner declined to allow Mr. Lewis to oppose.
Mr. Commissioner LAW inquired why had the Chief Commissioner refused to hear Mr. Lewis?
Cooke. Because he did not come strictly within the phrase in the rule "Attorney's agent." Mr. Lewis had not done the business in the action upon which the insolvent was detained. This was the case in the present instance. This gentleman was neither the attorney upon
being the amount of two quarterly instalments which became due on the 24th June, 1842, portion of the same annual sum of 7001. directed to be set apart for the benefit of the creditors pursuant to the consent of the said insolvent debtor, upon the application made herein, and which consent was made a rule of court on the 15th September, 1841.
The rule was before the court on the 23rd December, 1842, when it stood over to the 3rd January for judgment; on that day it was adjourned to the 8th February, and then to the 15th February, for judgment.
Upon this day Cooke and Robinson were heard in support of the rule for an attachment to issue against the insolvent; and Nichols and Wright contrà. After which the court discharged the rule.
Rule discharged. NOTE. Notwithstanding the discharge of this rule, this gentleman subsequently paid or satisfied the whole of his creditors, and obtained a revesting order.
the record, nor the attorney's agent. The privilege to oppose bail was an indulgence to the attorney upon the record, and to him only, and not a general permission to the detaining creditor to employ whom he pleased. He was just informed that this gentleman could not get the discharge of the insolvent in this action, not even by the consent of the client, without the consent or authority of the attorney upon the record.
Bursell said that that was so if his costs had not been paid; but if his costs had actually been paid, an action would lie against him if he refused to consent.
Mr. Commissioner LAW said, the only matter that had caused him to doubt at all the propriety of excluding this gentleman from the privilege of opposing for the creditor under these circumstances, was the suggestion that it might happen that the proceedings in an action might be of some standing, and the communication between the attorney and client might have ceased, and therefore it might not be reasonable to require the client to apply to the same attorney. Supposing there might be a case of that kind, it had nothing to do with this case. The reason why they allowed attorneys to appear without counsel, was not that the court allowed attorneys to usurp the province of the bar as they did in some places, but the reason of the exception was, that it was in favour of liberty. As the time was too short to instruct counsel, attorneys were permitted to appear, and under such circumstances it was reasonable that they should be allowed to do the business in person. That was the reason, and the only reason, why they allowed attorneys to transact business upon these occasions akin to the business of the bar. It was true that attorneys appeared upon dividends, proof of debts, and so on, in business which resembled the old bankruptcy business, and it was not unreasonable that they should be allowed to appear in matters of account, &c.; but in the trial of an issue they did maintain the privilege of the bar. He thought that this gentleman should not be allowed to oppose.
Opposition by Mr. B. disallowed.
Mr. Commissioner Law observed that this had been a discussion limited in its extent, as it only concerned detaining creditors and their attorneys and agents, and therefore all other creditors who have not sued must be at liberty to employ any person they please.
Cooke said that if there was no suit, parties might just as well employ counsel as attorneys.
Mr. Commissioner LAW.-Our rules, say any attorney. I do not recollect ever to have spoken to the commissioners about it. We have not quite discussed the whole question.
September 30, 1851.
(Before Mr. Commissioner Law.) Re HENRY SMITH. Insolvent petitioning under 1 & 2 Vict. c. 110, before proceedings under the Protection Acts are terminated. The court will not allow the process of discharge under the 1 & 2 Vict. c. 110, to be employed for defeating an adverse adjudication pronounced against the petitioner under the Protection Acts.
This insolvent applied to the court under the Protection Acts, on the 21st June, 1848, and at the first examination (July 14) he was opposed by Mr. Henry Russell, on account of damages and costs in an action which he had brought against him for singing his songs, and infringing upon his copyright. Friday, the 4th August, was named for making the final order (protection renewed.) On that day the consideration of the final order was adjourned by consent to November 3 (protection renewed), when the further consideration of the final order was adjourned sine die (protection not renewed.) In May, 1851, he obtained leave to apply under the 28th section for a protecting order, and ten